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Referendum on marijuana prosecution sought in Nashville
    #766122 - 01/17/15 12:44 PM (3 years, 5 months ago)

A push is underway for Nashvillians to get to vote on whether local Metro dollars go toward the prosecution of adults for possession of small amounts of marijuana.

But the move for Davidson County's first-ever public referendum on marijuana faces an obvious legal hurdle — whether the change in city ordinance would violate state law, which says that marijuana possession of any amount is a crime.

The Tennessee chapter of the National Organization for the Reform of Marijuana Laws plans to launch a petition signature drive to add a charter amendment to August's Metro general election ballot that seeks to creatively steer clear of a state law conflict.

Rather than explicitly calling for decriminalization, the proposed amendment says that the Metro government shall not appropriate any resources supporting, nor in any way monetarily support, the criminal prosecution of an adult for possession of less than 2 ounces of marijuana.

It also includes a "private right of action" provision that would give citizens standing to sue if Metro violates this law. If an individual or organization prevails in court, the amendment reads, they would receive $1,000 in damages and payment of all costs and reasonable attorney's fees.

"It's really revolutionary in that there is some consequences for the government if they elected to go forward," said Doak Patton, president of TN-NORML.

"We would like to see resources devoted toward violent criminals, thieves and people who are needing to be locked away instead of nonviolent offenders," he said. "That's one of the reasons we've been pushing this."

The group would need to collect 6,877 charter amendment signatures — 10 percent of the August 2014 general election turnout — by May 18 to qualify for the August ballot. Signatures, and the amendment itself, would need to be certified by the Davidson County Election Commission.

Other legal questions are almost certain to arise, however, that could thwart the effort.

Metro Department of Law Director Saul Solomon called it "premature" to comment on the implications of the charter amendment if it were added to the ballot and approved by voters. But he pointed to the possible conflict:

"These types of measures are fraught with difficulty because they may contradict or controvert relevant state and/or federal law," Solomon said.

Daniel Horwitz, a Nashville attorney representing TN-NORML, however, argued the charter amendment only deals with the expenditure of Metro dollars — he said it "does not attempt to undermine or in any way undermine state or federal or state law." The majority of the Davidson County District Attorney's Office's $8 million budget is comprised of Metro general fund dollars.

"This is a novel attempt at de-funding prosecution of low-level marijuana offenses," he said. "This initiative certainly isn't a panacea, but once enacted, it would ensure that no more Metro dollars are wasted prosecuting adults for the simple possession of small amounts of marijuana going forward."

Horwitz is also representing a group called Democracy Nashville, which is behind a second charter amendment that calls for a so-called "ban the box" amendment aimed at applicants for city jobs.

It would say Metro can't ask job applicants about criminal history on initial job applications unless it is required by state or federal law for that particular position. The amendment, however, would not prevent inquiries into a person's criminal history during job interviews.

An ordinance that would have achieved a similar end died in the Metro Council last year.

As a charter amendment, it too would need to meet the same 6,877-vote threshold as the marijuana-related proposal to make it on the August ballot.

"There's a growing awareness throughout the country that the criminal justice system is broken, and that the consequences of mass incarceration — both in terms of lives and dollars lost — are unacceptable," Horwitz said. "Each of these amendments would fix a small piece of that much larger problem."


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